Jersey & Guernsey Law Review – June 2009

Jersey’s royal charters of liberties

1 The series of charters of liberties granted to Jersey, some just to the Island, others jointly with Guernsey and its Bailiwick, do not simply repeat each other. The sequence of documents, spanning the years from the middle of the 14th century to the end of the 17th, demonstrate the continuing concern of the English Crown for the Island’s liberties. In the 1390s, exemption from tolls and dues in England was added, and then in the 16th century Edward VI confirmed the freedom of trade in times of war which had previously relied on papal sanction. Much more specific itemisation came in a charter of Elizabeth I, referring to the jurisdiction of Bailiff, Juratsand others, and to the right to justice within the Isle without having to seek further afield.

2  The charters of liberties reveal more than this, however, reflecting attitudes to the Islands, and the context of royal power which created them. They should also be seen in terms of their limits, for example in the ways in which they intersected with ongoing English efforts to control the ability of Jersey merchants to trade in and out of England without regard for the Staple (which regulated the wool trade) or other restrictions. In 1410, reports of exports of tin to La Rochelle, Normandy and elsewhere in France brought efforts to control their activities in Cornwall.[1] In 1469, soon after the French occupation of Jersey ended, another example of this control, specifically now to allow exports of up to £2000 worth of goods, was passed.[2]

3 More than a century after the separation of Jersey from Normandy consequent on the failures of the reign of King John, the first confirmation of the Island’s liberties was granted by Edward III in 1341. The customs of the Island had been documented over the previous century for example through royal inquests, as in 1247 and 1248, and in quowarrantoproceedings such as those of 1309. They provided that the Island would not be governed by the law of England or that of Normandy, but by a distinct set of political, social and economic rights and duties which defined the status of the inhabitants and guaranteed the whole through the participation of theJuratsin the judgments given out by the king’s courts in the Island, and exemptedthe people of Jersey from summons to a secular court elsewhere.[3] However gloriously the English King might later have triumphed in the Hundred Years’ War, Edward III’s fortunes in the immediate aftermath of his claim to the French throne were not great. In 1336 and 1337, supported by the French, the exiled claimant to the Scottish throne, David Bruce, raided Jersey and Guernsey, and in 1338 Guernsey was occupied by the French. It was not until the autumn of 1340 that the Island was retaken by the English, while Castle Cornet was held by the French for seven years.[4] Edward had formally declared his claim to the French throne in 1337 and launched his first attack on France in 1338. English armies on the continent of Europe were, however, notably unsuccessful, and Edward faced difficulties at home too, with resistance in Parliament in 1340 and 1341.[5] It was only in the spring of 1341, with the death of John III of Brittany, that Edward perceived an opportunity that might be seized, supporting John’s half-brother John de Montfort against the alternative claimant Charles of Blois, who was married to Joanna, heiress of Duke John III, and who was the son of Margaret of Valois, sister of Philip VI of France.[6] Many years before, in 1331, the communities of Jersey and Guernsey had been summoned to explain by what right they enjoyed their liberties and responded vociferously if not violently in their defence, in a case for which, unfortunately, we have no recorded outcome. In July of 1341, as opportunity beckoned for the king, Edward confirmed the privileges of both Jersey and Guernsey, and the latter’s associated Islands. He called to mind particularly the faithfulness of the Islands’ communities, and the dangers they had undergone.[7]

4  Richard II confirmed his grandfather’s charter in 1378.[8] This was a relatively unexceptional confirmation, although, after the years of English military success in the middle years of Edward’s reign, Richard’s regime was finding itself as its predecessor had in 1341, under great pressure as theBrétignysettlement was effectively challenged by the French. With most of Brittany having been under French domination for some years, there was no question but that, once again, the English King needed the support of the Island communities.[9] More significantly, however, in June 1394, Richard extended the previous grant by adding for the Islanders an exemption from tolls, duties and customs in England, as if they were English.[10] Richard’s policies of reliance on non-English territories, to which he granted extensive privileges, are now well known, and in a small way Richard involved the Islands as part of this policy, investing in them as a base for the Earl of Rutland, one of his favourites, and using them as a prison for one of his enemies, John, Lord Cobham.[11]

5  Henry IV, seizing Richard’s throne, did not confirm Richard’s grant of exemption from tolls, duties and customs of 1394, limiting his charter (of May 1400) to a confirmation of that of Edward III, as Richard’s first charter to the Islands, of 1378, had done.[12] It may be that the experience of John, Lord Cobham, exiled to Jersey by Richard, and active in the Parliament of 1399 which dealt with Richard’s allies, told against the continuation of the notable privilegeexempting the Islanders from tolls, duties and customs in England.[13] Henry, too, was cautious in his resumption of hostilities with France, and so without the urgent need of the strategic advantages of the Islands.[14]

6  Henry V in 1414[15] and Henry VI in 1442[16] reconfirmed in turn Henry IV’s confirmation of 1400. The context for these confirmations was the French war, and the fate of the lordship of the Islands. In 1414, Henry V was still at peace with the French, apparently seeking a treaty for the marriage of the French King’s daughter Catherine, a substantial dowry, and extensive lands. He was also working to continue a truce with the duke of Brittany, with Guernsey the site for a meeting between the commissioners of each side.[17] But in 1415, soon after the confirmation of the Islands’ privileges, he was at war, and hostilities continued beyond his death. By 1442, however, his son Henry VI was showing increasing signs of an interest in the termination of the conflict. The Islands’ position was particularly sensitive in this connection: their lordship had been granted to the new King’s uncle, John, Duke of Bedford, and on his death John’s younger brother, Humphrey, was successful in petitioning for them.[18] Humphrey was, of course, a vigorous advocate of the continuation of the French war. The innovation of the 1442 charter was to introduce, as well as the confirmation of the charter of 1341, a confirmation of the previously ignored grant of 1394 by Richard II. We might consider the reasons for this—the gradual rehabilitation of Richard II,even under the Lancastrians;[19] the advocacy of a lord of the Islands who might have valued their prosperity as a factor in his aggressive stance; and, more defensively, a recognition of the weakness of the English position in France amidst a new mood at court favourable to gestures of peace.

7 The next charter in the sequence represents something of a discontinuity. The first element to this break was due to the seizure of Jersey from its governor, John Nanfan, by the forces of the Comte deMaulevrierin 1461 Neither Bailiwick received any confirmation of privileges for several years, as the occupation of Jersey continued. Then, in 1465, Edward granted a charter confirming both of Richard II’s charters to Guernsey, Alderney and Sark alone, recognising the reality of the separation of the Bailiwicks consequent on the occupation by the forces of the Norman Jean deCarbonnel.[20] When Jersey was recovered by the English crown in 1468, on 28 January 1469 Edward confirmed specifically to Jersey the Island’s liberties granted in Richard II’s second charter of liberties, and extended this for the first time with an exemption fromtolls, pontages, subsidies etc.This confirmation made special reference to the exertions of its inhabitants in assisting in the recapture of MontOrgueiland of Jersey.[21]

8  The other discontinuity was one of dynasty. Edward IV viewed the Lancastrian monarchs as illegitimate—the consequence of the interruption to legitimate succession resulting from the usurpation of Henry IV of 1399. There were many signs of this, amongst them his charters of liberties for the Islands. Determined to break from the tradition of confirmation and reconfirmation seen under his predecessors, Edward returned to the charters of Richard II, omitting the previous 70 years of history. It was not the charters of 1400, 1414, and 1442 which were confirmed; Edward’s charter returned to Richard II’s concession of exemption from tolls, duties and customs.[22]

9 When Richard III came to confirm the privileges of the Bailiwicks, he too conducted an intriguing exercise in overwriting the events of the previous reign. His confirmation took the form of a confirmation of the charter of 1465, which of course had been issued only toGuernsey, but it silently amended the record to make the confirmation one to both Guernsey and Jersey.[23] It may be that this choice of the 1465 charter represented a rejection of the implications of the charter of 1469, issued at a time when the lordship of the Islands had passed away from the influence of Richard’s father-in-law, Richard Neville, Earl of Warwick, to that of theWoodvilles, his rivals for power in the chaotic days after Edward IV died.[24]

10  Henry VII confirmed each Island’s privileges separately, and intriguingly differently. His confirmation to Guernsey, Sark and Alderney was a confirmation of the 1469 charter of Edward IV, on 10 February 1486; on the same day he confirmed Jersey’s privileges, referring directly back to the grant of Richard II, then following the wording of the grant to Guernsey and its Bailiwick.[25] This confirmed the excision of Richard III from the record, as it did the disappearance of the Lancastrian Kings. Henry was definitely in this case the successor of his father-in-law Edward IV, and the restorer of the unity which had been lost on the death of Richard II. As in other aspects of Henry’s government of the Islands, treated separately for the first time,[26] it returned to a position of separate charters for each Bailiwick.

11 In 1510, Henry VIII confirmed his father’s inspeximusand confirmation to Jersey, in the charter of 26 February 1510. This took the form of a confirmation of a charter of Henry VII confirming the charter of 1469, itself confirming the Richard II charter—in practice, therefore, using the text of the Guernsey confirmation of his father, rather than that of the Jersey one, albeit making it refer specifically to Jersey.[27]

12  Edward VI’s charter to Jersey was innovative in several respects.[28] It returned to the tradition of granting privileges jointly to both Jersey and to Guernsey and, in a sign of the impact of the Reformation and of his regime’s Protestant nationalist outlook, it incorporated a statement of the Islands’ neutrality, something for which since the 1480s they had relied on a papal bull. Edward’s charter refused to recognise any papal involvement in the establishment of neutrality, choosing instead to refer vaguely to “various other privileges not expressed in the letters ... conceded by our progenitors”.

13 Initially Edward’s charter to both Bailiwicks confirmed the charters of Henry, his father, and of Henry, his grandfather (both specifically to Jersey), and of Edward, his great-grandfather (20 January 1469, to Jersey), ultimately confirming that of Richard II to both Bailiwicks in 1394. That done, the charter called to mind the bravery of the Island communities in their defence of Mont Orgeuil, apparently in reference to the much earlier events of Edward IV’s reign, indicating that this was on the advice of Edward Seymour, Duke of Somerset and the King’s uncle and protector, a man with a record of interest in the Islands since 1536.[29] The reward for this loyalty was to be not just the freedom from tolls and customs which (along with duties) were specified by Richard II’s charter, but also subsidies, and the dues ofpontage,pannage,murage, andfossage, relating to the use of bridges, woodland pasturage, and the maintenance of town walls, and ditches, respectively. There was then a confirmation of all the liberties and franchises which any of them had before enjoyed. The charter then became specific in reference to two exactions on the people of Jersey, one recently imposed and the other customary—the first on wheat exports, the second on wool exports, which were regulated from an alleged rate of 3s 6d per quarter and 4d per 150 pounds weight, to 12d and 3s 6d respectively.

14 The latter measure shows one clear sign of the origins of the charter. This is an undated petition of the inhabitants of the Islands to Somerset, which ends with a call for the ending or mitigation of the custom on wheat exports. The petition also refers to free access and trade for all merchants coming to the Islands, even in time of war. Both these requests being granted, however, there were others whichwere not acceded to: issues relating to royal lands, to partible inheritance, repair of ports, for the Captain, Bailiff, Dean and others to decide petty causes, and to writs and commissions from chancery.[30]

15 In a sign of the lack of alignment between her regime’s priorities, especially in the religious field, and the Jersey community, the reign of Mary saw no confirmation of Jersey’s privileges entered on the Patent Roll. In Guernsey, where Roman Catholic restoration was more readily welcomed, and where the governor, Peter Mewtas, had been a stalwart of the Northumberland regime which the new Queen, effectively, overthrew, Mary abandoned the innovations to the form and content of the charters of liberties made by her brother, granting a confirmation of the charter of her father, Henry VIII, and therefore granting specifically to Guernsey.[31] In Jersey, however, there was silence, as her regime seems to have tolerated a continuation of the regime of Sir HughPaulet, who with many leading families was an adherent of Protestantism, in the interests of security in the face of a French threat to both Bailiwicks.[32]

16  While in Guernsey Elizabeth soon confirmed, simply and straightforwardly, the charter of her elder half-sister, following it in 1560 with a much more distinctive document;[33] in Jersey it was not until 1562 that a charter of confirmation was granted.[34] This mirrored very closely the document granted to Guernsey in 1560. As in the Guernsey charter, the 1562 charter confirmed Jersey’s exemption from English customs and duties, and reaffirmed neutrality and freedom of trade in times of war. It added, for the first time, clear confirmations of the jurisdiction of Bailiff,Juratsand other officers, and the right to justice exclusively within the Islands.

17 As with Guernsey, interestingly, this charter emphasised the position of the Islands as presently, and not simply historically, part of the Duchy of Normandy, something which the earlier sixteenth-century charters of the Island had not done. It also referred to the authority of parliament. The charter was therefore a clear product of a period in which English interest in Normandy was stimulated, almost certainly chiefly through a sense of common cause with Protestants there, with significant implications for the Islands. It was in 1562 that the Norman Protestants took up arms, and in 1563 the English, in theso-called “Newhaven voyage”, took control of Le Havre as a security, demanded by Elizabeth, for the eventual return of Calais should joint military efforts be successful in overthrowing the regime of Catherine de Medici.[35] There was an extensive connection between the forces deployed to Normandy, under the leadership of the Earl of Warwick (explicitly commissioned to rally the Queen’s subjects in the Duchy of Normandy), and the rapidly growing Protestant influence in the Islands.[36] ThePauletsin Jersey were crucial to this, having maintained their position through the Marian regime and now emerging as a driving force for change not just in Jersey but in Guernsey too. The only question, which can at the moment be addressed by speculation alone, is that raised by the late grant of the Jersey charter and its evident textual dependency on the Guernsey document of 1560. If, as seems likely, the Guernsey document was a manifesto for a group which at that stage did not yet control the governorship or the majority of theJuratsin the Island, then it may be that in Jersey thePauletinterest, and that of others such as the deCarterets, was strong enough not to need to make such a statement of intent.[37]

18  James VI’s accession to the English throne as James I was the occasion in Jersey for a confirmation of privileges on 7 April 1604 which remained relatively generic in character.[38] First, it restated in general terms the privileges granted in previous charters, moving on to a more specific indication of the right to exercise judicial power. Calling to mind the recovery and defence of MontOrgueil, it went on to confirm exemptions from duties, tollsetc, and free commerce in time of war. Local laws and customs were confirmed, as was the power to try and determine pleas; no writ from England was to have the power to bring any inhabitant of Jersey to an English court. Both inhabitants, and merchants coming to the Island, were to be included. The charter also echoed closely some of the content of the Edward VI charter to both Islands. For example, it referred to the “recent” levy of 3s 6d on each quarter of wheat or other grain, beyond the accustomedamount, with the same stipulation that they should pay just 12d per quarter, but 3s 6d for each pound of wool. Guernsey’s confirmation followed a few months later, on 18 December 1604, restating the contents of the charter of Elizabeth; but then in 1605 a further charter for Guernsey introduced novel material by confirming several long-standing grants and practices: a grant to the Minister of the town church, the transfer of the levy called the PetitCoutumewhich had been assigned to building the harbour at St Peter Port, and the local right to administer weights and measures.[39]

19  On 6 July 1627, Jersey received from Charles I a confirmation, in very similar terms, of his father’s grant of 1604, again referring rather anachronistically to the “recent” levy of 3s 6d on each quarter of grain.[40] In Guernsey, in a similar way in 1627, Charles I confirmed his father’s two charters of liberties, adding a safeguard to the secularised properties of churches, chapels, hospitals and schools, and a detailed itemisation of goods to be exported without custom, for the safeguard of the Island and of Castle Cornet.[41] One might ask the question why, again, did Guernsey seem more active in adding clauses relevant to contemporary concerns.

20  On 10 October 1662, Charles II confirmed his father’s grants to Jersey.[42] The document was cast in the form of a traditionalinspeximus, reciting specifically the charter of 6 July 1627, but notably now showing greater favour to the people of Jersey than to those of Guernsey. As a mark of his special favour he granted that a mace bearing the royal arms could be carried in the presence of the Bailiff. In 1668 Charles II confirmed his father’s grants to Guernsey[43]—but then the relationship between the King and theGuernseymen, and his better relationship with Jersey, almost certainly sprang from direct personal experience. Charles had spent some time in Jersey during the 1640s, while the Island, almost alone among the English King’s territories, remained loyal to the royalist cause—and while Guernsey, with the exception of Castle Cornet, had committed itself to the King’s enemies.[44]

21 This continuing good relationship is evidenced in the charter of Charles’ brother, James II. Anxieties over the implications of the accession of James do not seem to have been as prevalent in Jersey as they were elsewhere—including in Guernsey. There, a tense relationship between the Lieutenant-Bailiff and Juratson the one hand and Captain Edward Scot, the Commander-in-Chief on the Island, saw the latter pursue complaints of treasonous speech against Islanders including aJurat,Elizéede Saumares.[45] Guernsey also saw much higher levels of tension associated with the King’sfavourfor Roman Catholicism: the Bailiff andJuratsobjected strongly to a catholic priest being given a place to celebrate mass in the churchyard, and although the regime backed down, it was strictly on the understanding that an alternative location was found to the priest’s satisfaction, and that if no action was taken swiftly then he would be given his place in the churchyard once again. Guernsey was not to receive a charter of confirmation under James. In stark contrast, in Jersey onereport describes James’s proclamation as being greeted by a demonstration of joy and allegiance.[46] Still, it was some time before confirmation came. On 21 June 1686, in response to a petition from the Islanders for a confirmation, the matter was referred to the English Attorney General as approved, with an indication that the King would confirm their privileges and show them some mark of his favour. The warrant for the grant is dated 19 March 1687, and charter itself is dated 15 April in that year: his brother’s grant was effectively reaffirmed, with the addition of a confirmation of the arrangements for the appointment the collector of tolls, as decreed in 1671.[47]

22 The revolution of 1688 seems to have triggered the usual concern for a confirmation of privileges by the new monarch, especially in Guernsey.[48] The privileges accumulated and defined over the previous three and half centuries were, however, not to receive their traditional confirmation. Those rights were effectively included in the all-embracing confirmation represented by the bill of rights. Jersey’s community had secured a particularlyfavouredposition under the crown, with its legal and governmental system, its fiscal and economic status, and it international relationships carefully and extensively laid out. Their origins lay in the inherited customs which had beenaffirmed in 1341; they had been secured over the following centuries upon the powerful interest of the local community’s role as the crown’s representatives in the Island.

Professor Tim Thornton, MA, MBA, DPhil, FRHistS, is Pro Vice-Chancellor (Teaching and Learning), University ofHuddersfield,Huddersfield, HD1 3DH, West Yorkshire UK, and can be contacted ontel: + 44 (0)1484 472; or email: t.j.thornton@hud.ac.uk. Website: www.hud.ac.uk

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